United States v. West

FILED
United States Court of Appeals
Tenth Circuit

May 17, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 10-4123
v.

JEREMIAH WEST,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 05-CR-00675-DAK-1)

Submitted on the briefs: *

Carlie Christensen, United States Attorney, and Karin M. Fojtik, Assistant United
States Attorney, Salt Lake City, Utah, for Plaintiff - Appellee.

Steven B. Killpack, Utah Federal Defender, Scott Keith Wilson, Assistant Federal
Defender, and Kent Hart of Utah Federal Defender’s Office, Salt Lake City, Utah,
for Defendant - Appellant.

Before KELLY, TACHA, and EBEL, Circuit Judges.

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause therefore
is ordered submitted without oral argument.
KELLY, Circuit Judge.

Defendant-Appellant Jeremiah West appeals from a remand sentence. In

United States v. West (West I), 550 F.3d 952 (10th Cir. 2008), we affirmed the

district court’s determination that he was subject to a minimum mandatory 15-

year sentence, but remanded for the district court to make factual findings

regarding the facts underlying three enhancements. On appeal, Mr. West

challenges whether a prior felony conviction for failure to stop constitutes a

violent felony under the Armed Career Criminal Act (“ACCA”) and the restitution

award. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)

and we affirm in part and remand.

Background

Briefly, Mr. West was indicted on four counts: (1) being a previously

convicted felon in possession of a firearm and ammunition, (2) being a person

who is addicted to and an unlawful user of controlled substances who knowingly

possesses a firearm and ammunition, (3) possessing marijuana with the intent to

distribute, and (4) possessing methamphetamine. West I, 550 F.3d at 955. Mr.

West pleaded guilty to one count of being a previously convicted felon in

possession of a firearm in exchange for the Government’s agreement to drop the

other charges. Id. In pleading guilty, he admitted that he had tried to evade

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police, that he knowingly possessed the shotgun found in his car, and that he had

previously been convicted of a felony. Id. at 956. He was sentenced to 235

months’ imprisonment, at the low end of the Sentencing Guidelines range of 235

to 293 months. 1 R. 82-83. The district court also ordered Mr. West to pay

$6,118.26 in restitution for damage during the attempt to flee. Id. at 86.

On appeal from his sentence, we concluded that the district court failed to

address specifically Mr. West’s objections to the PSR’s facts, instead simply

adopting the PSR. West I, 550 F.3d at 974. We remanded with instructions to

resolve the factual disputes Mr. West raised or, if determined that the government

did not prove the disputed facts by a preponderance of the evidence, that the court

conduct a new sentencing proceeding excluding those unproven factual

allegations. Id. at 975.

On remand, Mr. West argued that his sentence should not have been

enhanced under the ACCA; the gun he possessed was not stolen; and his

childhood abuse, trauma, and psychological disorders mitigated his conduct. 1 R.

92-94. In addition, Mr. West argued for the first time that the district court

improperly imposed restitution for damage that did not result from the actions

forming the underlying basis for his conviction. Id. at 148.

At resentencing, the government agreed that no evidence supported a two-

level enhancement for possessing a stolen weapon, reducing the guideline range

to 188-235 months. Id. at 157. The district court resentenced Mr. West on July

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1, 2010, removing the stolen weapon enhancement and sentencing Mr. West under

the § 3553 factors. 2 R. 15-16. The court imposed the statutory minimum

sentence of 180 months. Id. at 16. However, the court concluded that it lacked

the power to revisit the restitution issue as it was not the issue prompting the

remand, regardless of whether it was properly raised by Mr. West. Id.

On appeal, Mr. West again asserts that his fleeing conviction is outside the

ambit of the ACCA. Aplt. Br. 3. He also argues that the restitution award in this

case was illegal. Id. at 4.

Discussion

In reviewing a sentence on appeal, we first determine whether the sentence

is procedurally reasonable, reviewing the district court’s legal conclusions de

novo and its factual findings for clear error. United States v. Muñoz-Nava, 524

F.3d 1137, 1146 (10th Cir. 2008). Whether Mr. West’s prior conviction for

failure to stop constitutes a violent felony under the ACCA is a legal

determination that we review de novo. Likewise, the district court’s

determination that it lacked the authority to hear the restitution argument on

resentencing is a purely legal issue that we review de novo. As the issue of the

district court’s authority concerns compliance with the mandate issued by this

court, we review for harmless error. United States v. Lang, 405 F.3d 1060, 1064

(10th Cir. 2005).

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A. Violent Felony Under the ACCA and Law of the Case

“‘[W]hen a case is appealed and remanded, the decision of the appellate

court establishes the law of the case and ordinarily will be followed by both the

trial court on remand and the appellate court in any subsequent appeal.’” Roth v.

Green, 466 F.3d 1179, 1187 (10th Cir. 2006) (quoting Rohrbaugh v. Celotex

Corp., 53 F.3d 1181, 1183 (10th Cir. 1995)). Under this doctrine, we are bound

by our determination in West I that Mr. West’s prior felony conviction for failure

to stop constitutes a violent felony under the ACCA. The law of the case doctrine

precludes relitigation of a ruling of law in a case once it has been decided.

McIravy v. Kerr-McGee Coal Coop., 204 F.3d 1031, 1034-35 (10th Cir. 2000).

The doctrine “‘posits that when a court decides upon a rule of law, that decision

should continue to govern the same issues in subsequent stages in the same

case.’” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988)

(quoting Arizona v. California, 460 U.S. 605, 618 (1983)).

The law of the case doctrine is a rule of practice, Pittsburgh Cnty. Rural

Water Dist. No. 7 v. City of McAlester, 358 F.3d 694, 711 (10th Cir. 2004), and,

therefore, may be excused by circumstances such as intervening contrary

decisions by the Supreme Court, United States v. Platero, 72 F.3d 806, 811 (10th

Cir. 1995). In West I, we addressed Mr. West’s argument under the ACCA and

determined that his prior conviction for failure to stop constitutes a violent felony

under the ACCA. 550 F.3d at 960. That determination is the law of the case

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unless the Supreme Court issues an intervening contrary decision. Mr. West now

argues that a case recently argued before the Supreme Court, Sykes v. United

States, 598 F.3d 334 (7th Cir. 2010), cert. granted, 79 U.S.L.W. 3194 (U.S. Sept.

28, 2010) (No. 09-11311), may provide such authority.

We recognize that Sykes presents the Supreme Court with the question this

court answered in West I. However, as a disposition in Sykes has not yet been

reached, the law of the case for this appeal remains unchanged. If the Supreme

Court issues an opinion in Sykes favorable to Mr. West, it will probably be within

the ninety-day window in which West can file a petition for certiorari to the

Supreme Court. Sup. Ct. R. 13. Or, alternatively, Mr. West can seek a

precautionary petition for certiorari arguing the Sykes issue. But for now, we

must affirm our prior ruling that West’s prior felony conviction for failure to stop

constitutes a violent felony under the ACCA.

B. Restitution upon Resentencing and the Mandate Rule

Mr. West did not raise his challenge to the restitution award in his initial

sentencing proceedings and appeal, and, therefore, we are not bound by the law of

the case with respect to this issue. Because we remanded for resentencing, the

mandate rule controls here. The mandate rule is a corollary to the law of the case

requiring trial court conformity with the appellate court’s terms of remand; in this

circuit “where the appellate court has not specifically limited the scope of the

remand, the district court generally has discretion to expand the resentencing

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beyond the sentencing error causing the reversal.” United States v. Moore, 83

F.3d 1231, 1234 (10th Cir. 1996) (citations omitted). The mandate rule is

consistent with 18 U.S.C. § 3742(g), which directs that when a case is remanded

for resentencing, the district court “shall resentence a defendant in accordance

with section 3553 and with such instructions as may have been given by the court

of appeals . . . .” See generally Fed. R. App. P. 41(a).

The mandate rule is “a rule of policy and practice, not a jurisdictional

limitation, which thus allows some flexibility in exceptional circumstances.”

Moore, 83 F.3d at 1234-35. The Government asserts that because the requisite

exceptional circumstances are not present in the case, a second remand is not

warranted. Aplee. Br. at 13 n.3. (citing Moore, 83 F.3d at 1234). This argument

is beside the point; because we conclude that consideration of Mr. West’s

challenge to the restitution award was within the permissible scope of remand, we

need not address whether exceptional circumstances are present such that an

exception to the mandate rule would be warranted.

There is a divergence among the circuits concerning the permissible scope

of resentencing on remand. See United States v. Whren, 111 F.3d 956, 959 (D.C.

Cir. 1997) (collecting cases); Charles Alan Wright, Arthur R. Miller, Edward H.

Cooper, Federal Practice & Procedure § 4478.3, at 763 n.64 (2d ed. 2002). While

this circuit and others generally contemplate that resentencing may proceed de

novo, others employ a “waiver” approach reasoning that issues not previously

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raised have been waived. Whren, 111 F.3d at 959. Our rule is perhaps best

illustrated by contrast to those circuits that have adopted the waiver approach.

For example, the Seventh Circuit and the District of Columbia Circuit have

adopted the rule that “[o]nly an issue arising out of the correction of the sentence

ordered by [the court of appeals] could be raised in a subsequent appeal.” United

States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996); see Whren, 111 F.3d at 959

(adopting this rule). In adopting this approach, the District of Columbia Circuit

reasoned, “De novo resentencing is in essence a license for the parties to

introduce issues, arguments, and evidence that they should have introduced at the

original sentencing hearing. The alternative of requiring the parties to raise all

relevant issues at the original sentencing hearing serves both equity and

efficiency . . . .” Whren, 111 F.3d at 959.

In contrast, the scope of the mandate on remand in the Tenth Circuit is

carved out by exclusion: unless the district court’s discretion is specifically

cabined, it may exercise discretion on what may be heard. Therefore we do not

make inquiry into whether the issue presented is antecedent to or arises out of the

correction on appeal. Instead the district court is to look to the mandate for any

limitations on the scope of the remand and, in the absence of such limitations,

exercise discretion in determining the appropriate scope. This approach has been

characterized by a sister circuit as a presumption in favor of a general remand.

See, e.g., United States v. Helton, 349 F.3d 295, 299 (6th Cir. 2003). Our rule

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was articulated by United States v. Ortiz, 25 F.3d 934, 935 (10th Cir. 1994), and

further explained in Moore, 83 F.3d at 1235. Thus, under our precedent, the

district court may (not must) expand the scope of resentencing absent an express

limitation. See also United States v. Keifer, 198 F.3d 798, 801 (10th Cir. 1999).

Accordingly, to determine whether the district court had discretion to

expand the scope of remand to consider the restitution issue we must look to the

mandate in West I to determine whether it “specifically limit[s] the scope of

remand so as to prevent the district court from considering” West’s objection to

the restitution order. Lang, 405 F.3d at 1064. Compare id. (concluding that the

language, “Based on the foregoing, we REVERSE the district court’s downward

departures for both Langs, remanding both cases for resentencing pursuant to 18

U.S.C. § 3742(f)(2)(B), and AFFIRM the decision of the district court on the

remaining issues” did not include “the type of specificity necessary to limit a

district court’s authority to resentence on remand” (citing United States v. Hicks,

146 F.3d 1198, 1200-01 (10th Cir. 1998))), with United States v. Webb, 98 F.3d

585 (10th Cir. 1996) (concluding that the language in Webb I, 49 F.3d 636, 640

(10th Cir. 1995), “The decision of the district court to depart from the applicable

guideline range is therefore REVERSED. The Case is REMANDED for

resentencing within the prescribed range of twenty-seven to thirty-three months

imprisonment” prohibited district court from departing downward from the

articulated range at resentencing).

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 In West I we stated,

“If the district court fails to comply with Rule 32(i)(3)(B), we must
remand for the court to either make the necessary findings or enter a
declaration that it did not take the controverted matters into account
in sentencing the defendant.” United States v. Cereceres-Zavala, 499
F.3d 1211, 1213-14 (10th Cir. 2007). For these reasons, we are
compelled to REMAND this case, directing the district court resolve
the factual findings West raised or explain why it is unnecessary for
sentencing purposes to do so. If the district court determines that the
Government did not prove the disputed facts by a preponderance of
the evidence, the district court should then conduct a new sentencing
proceeding, excluding those disputed and unproven factual
allegations.

550 F.3d at 975. The opinion ended with the sentence, “We REMAND for the

district court to conduct proceedings consistent with this decision.” Id.

It is true that in West I we specifically instructed the district court first to

resolve the factual disputes Mr. West raised. If this circuit adhered to the waiver

approach, one might conclude that the restitution challenge, being outside the

grounds for initial appeal and remand, was waived. As discussed, however, the

default in this circuit is de novo resentencing. To the extent that the district court

determined that it should conduct a new sentencing proceeding, we did not limit

the scope of that proceeding. Therefore, the district court erred when it

determined that it lacked authority to reconsider the restitution obligation; the

district court had discretion to consider the issue. Accord United States v.

Brown, 212 F. App’x. 747, 751 (10th Cir. 2007) (unpublished) (“A review of our

case law shows that we require quite a high level of specificity to limit a remand

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on resentencing.” (citing Webb, 98 F.3d at 587; United States v. Davis, 912 F.2d

1210, 1215 (10th Cir. 1990))).

We cannot say that the district court’s error was harmless. “Courts have no

inherent power to order restitution; they may only do so as authorized by statute.”

United States v. Gordon, 480 F.3d 1205, 1210 (10th Cir. 2007) (citation omitted).

In this case, the district court originally imposed restitution pursuant to the

Mandatory Victim Restitution Act (MVRA):

[W]hen sentencing a defendant convicted of an offense . . . the court
shall order, in addition to, or in the case of a misdemeanor, in
addition to or in lieu of, any other penalty authorized by law, that the
defendant make restitution to the victim of the offense . . . . For the
purposes of this section, the term “victim” means a person directly
and proximately harmed as a result of the commission of an offense
for which restitution may be ordered . . . . This section shall apply in
all sentencing proceedings for convictions of, or plea agreements
relating to charges for, any offense that is a crime of violence, as
defined in section 16; an offense against property under this title, or
under section 416(a) of the Controlled Substances Act (21 U.S.C.
856(a)), including any offense committed by fraud or deceit; or an
offense described in section 1365 (relating to tampering with
consumer products) . . . .

18 U.S.C. § 3663(A)(a)(1)-(2), (c)(1)(A)(i)-(iii). In Hughey v. United States, the

Supreme Court held that “the language and structure of the [Victim and Witness

Protection Act (VWPA) 1] make plain Congress’ intent to authorize an award of

1
The definitions of victim in the VWPA and the MVRA are identical, as
the VWPA was the predecessor statute to the MVRA. Compare 18 U.S.C.
§ 3663(a)(2) (defining “victim” as “a person directly and proximately harmed as a
result of the commission of an offense for which restitution may be ordered”),
with 18 U.S.C. § 3663(A)(a)(2) defining “victim” as “a person directly and
proximately harmed as a result of the commission of an offense for which

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restitution only for the loss caused by the specific conduct that is the basis of the

offense of conviction.” 495 U.S. 411, 413 (1990) (footnote omitted). Hughey

abrogated our prior holding in United States v. Duncan permitting restitution for

losses associated with additional counts of an indictment for which a defendant

did not plead guilty because they “had a significant connection to the act for

which conviction was had.” 870 F.2d 1532, 1537 (10th Cir. 1989). “The MVRA,

which amended the VWPA in 1996, did not change the general rule that

restitution may only be ordered for losses caused by the offense of conviction.”

United States v. Gordon, 480 F.3d 1205, 1211 (10th Cir. 2007). The “‘main

inquiry for causation in restitution cases is whether there was an intervening

cause and, if so, whether this intervening cause was directly related to the offense

conduct.’” United States v. Speakman, 594 F.3d 1165, 1172 (10th Cir. 2010)

(quoting United States v. Wilfong, 551 F.3d 1182, 1187 (10th Cir. 2008)).

Mr. West pleaded guilty in this case only to being a previously convicted

felon in possession of a firearm. 1 R. at 82; see 18 U.S.C. § 922(g)(1). The

district court imposed restitution for the losses suffered when West used his car to

repeatedly hit the police cars and the convenience store before he was arrested.

However, the fact that West caused injury to property in connection to resisting

arrest is not sufficient to infer that the damage was caused by the underlying

restitution may be ordered”). Therefore, this Court has concluded that
interpretations of the VWPA are relevant to the MVRA. See United States v.
Wilfong, 551 F.3d 1182, 1185 (10th Cir. 2008).

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possession crime to which he pleaded guilty. In determining whether a defendant

is required to pay restitution under the MVRA the district court must determine

(1) whether the crime of conviction or plea falls within the terms of 18 U.S.C.

§ 3663A(c) and (2) whether that crime was the proximate cause of the damage.

The district court’s conclusion that it lacked discretion to hear Mr. West’s

restitution challenge was error. See Moore, 83 F.3d at 1235 (“Such a failure to

exercise discretion when there is an obligation to do so is itself error.” (citation

omitted)). Because the court of appeals is not empowered to exercise the

discretion of the district court, we must remand. On remand, the district court

shall consider only this issue. Appellant’s motion to withdraw the ineffective

assistance of counsel claim is granted.

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